SAMUEL Vs. ANNAMMAL

JUDGEMENT

(1.) The only point to be decided is, whether the plaintiff is the legitimate daughter of Moses. Pakkiam, the plaintiff's mother, was married to Moses about 1870, but on 2nd March, 1880, there was a deed of separation, Ex. I. It recites that owing to want of harmony between the husband and the wife, they decided to separate, the wife receiving, according to the caste custom, a sum of money, and she goes on to declare that she will in future have no concern either with Moses or with his property. Pakkiam died in 1922 and Moses in June, 1923; the suit was brought in December, 1923, and on the date of its institution, the plaintiff, who was born in 1883, was about 40 years old. Both the Lower Courts have held that the plaintiff is the daughter of Moses and awarded her a share in his property. The parties are Indian Christians, and I may observe that the plaintiff's legitimacy is disputed by all the relations of Moses impleaded as defendants (twelve in number), including his brother and sisters.

(2.) The Lower Courts have rejected the contention put forward for the defence, that the deed of separation amounted to a divorce. I shall assume (without deciding the point) that notwithstanding the deed, the marriage did not become dissolved.

(3.) Both the Lower Courts have proceeded upon a wrong interpretation of Section 112 of the Indian Evidence Act. Says the District Munsiff: Both Moses and Pakkiam continued to live in that small village where they must have often met each other subsequently...And since the plaintiff was born during the subsistence of what in spite of Ex. I was a lawful wedlock, I hold on the first issue that plaintiff was born of Moses and Pakkiam.